A recent decision by the Full Bench of the Fair Work Commission (CFMMEU v Mt Arthur Coal  FWCFB 6059) provides some timely guidance to employers considering introducing Covid-19-related workplace requirements.
The decision has shown the risks associated with bringing in measures such as a mandatory vaccination requirement without being able to rely on a health directive.
It has also given us a good idea of what steps an employer must take for such measures to be legally enforceable.
What were the facts of the case?
The case involves an employer, a miner in the BHP group, introducing a requirement that anyone working at their mine site must be vaccinated, with deadlines for single and double doses. The Full Bench were asked to rule on whether the requirement was a ‘lawful and reasonable direction’. Ultimately, they found that, in these specific circumstances, the direction was not reasonable, because it was made without adequate consultation with the affected employees. The consultation was required under NSW’s Work Health and Safety Act 2011 (WH&S Act).
What legal issues were decided?
The Full Bench emphasised that what counts as lawful and reasonable will depend very much on the specific circumstances in each case. Significant features in this case include that the vaccination was not mandated by law, such as a Chief Health Officer’s Direction, that it was brought in by the employer on health and safety grounds, and that whatever consultation was carried out was not sufficient to meet the requirements of the WH&S Act.
Several arguments claiming to provide a simple test for what makes a direction reasonable were considered and rejected. These included the idea that to be unreasonable a direction had to be so unreasonable that no reasonable person could give it. The Full Bench also ruled that the reasonableness test didn’t mean asking if there was no better policy that could be adopted, or that they should decide what they would have done in the same circumstances.
They concluded that for any given situation there would be a range of reasonable options and any direction falling within that range would be reasonable. The employer has the right to choose any one of those reasonable options.
Another claim that was rejected was that only the effect of the direction, and not the process by which it was introduced, mattered.
The Full Bench said that while following proper process wasn’t always necessary for a direction to be reasonable, process would be a factor to consider and sometimes, such as here, it could be relevant or even be enough by itself to make a direction unreasonable. They also considered privacy issues and claims relating to ‘bodily integrity’.
Although they didn’t make any specific rulings about either issue, they said that these could be relevant in some circumstances and, perhaps more importantly, that these could play a part in consultation. For example, even if objections from employees concerned about their ‘bodily integrity’ would ultimately be irrelevant, in order to be acting reasonably an employer should at least listen to those concerns and explain to the employee why the direction is being given anyway.
What approach should be taken?
We shouldn’t look for any exhaustive list of what things will be relevant to deciding whether a direction was lawful and reasonable.
The unique facts of each case will always have to be considered, but if we are talking about directions given to award covered employees by their award covered employer, it is a fairly safe bet that award provisions will be relevant to whether the direction is reasonable.
Although the Full Bench suggested the consultation provisions in awards and industrial agreements would, in similar circumstances likely apply, they acknowledged this was not a settled question of law and that again specific circumstances would determine the outcome.
While this decision doesn’t give us a neat list of steps to take when considering introducing a mandate for vaccination, it does provide some useful advice on how to consult with employees.
Consultation doesn’t give employees a veto. You must listen to your employees, but you make the final decision.
There does, however, have to be a genuine opportunity for the employee to persuade the employer to change their mind. If a decision is already definite or irrevocable, this won’t count as consultation.
What are the key takeaways?
Listed below are some key points which need to be considered when establishing whether it is lawful and reasonable to mandate Covid-19 vaccinations in a workplace without relying on a health directive.
- It’s always a question of what is reasonable in a specific context.
- When considering introducing any Covid-19 related measures, account for genuine medical exemptions, or any other justifiable concerns employees might have.
- The uniform WHS laws (which this case considered) require consultation, as do the equivalent laws in Victoria and WA.
- When consulting, check to ensure that your actions meet the formal compliance obligations of your state or territory’s safety laws.
- Check to ensure that this consultation also meets any award requirements (it probably will, and you might as well also comply with those).
- Make sure the consultation is genuine (listen to what employees have to say and don’t make up your mind beforehand).
- It is still a decision for management to make; employees don’t have a veto.
- The Full Bench noted that the obligation to consult is ‘as far as reasonably practicable’ and noted that if there were to be a rapid change, such as a new variant of Covid-19 emerging, the process could be sped up.
In a nutshell; what is reasonable depends on the context, but employers should engage in genuine consultation as far as reasonably practicable before making significant changes on WH&S/OH&S grounds.
© Bristow Legal (December 2021). Individual liability limited by a scheme approved under Professional Standards Legislation.
Please note that this publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely upon this publication as legal advice.
About the author:
A senior lawyer at Brisbane-based Bristow Legal, specialists in the road transport industry, Paul Murray has worked for employers, contractors and employees in employment law matters across a range of industries. He has appeared before the Fair Work Commission and the Queensland Industrial Relations Commission as well as representing clients and members in conciliations and other forms of dispute resolution.